On June 22 the U.S. Department of Labor issued its first Administrator Interpretation under the FMLA, “clarifying” how the FMLA applies to requests for leave by those who provide care for a child without a biological or legal relationship to the child. In this month’s podcast, we explain what’s new in this interpretation, what isn’t, and what it means for employers.

Great podcast. Well done. It is certainly important to look at each case indivudally. That said, do you have any sense as to how long an employee might need to be within an in loco parentis arrangement in order for it to qualify under FMLA in the presence of a serious health condition? How temporary can it be? For example, if someone is providing day-to-day care for a child in absence of parents who are traveling abroad, caring for a child who is visiting a relative in another city during the summer (non-school) months, a visiting student from another country, a child whose parent is in rehab for three weeks, etc.

Thanks for the question Kirk. The DOL partially addresses this issue in the new interpretation, stating that “an employee who cares for a child while the child’s parents are on vacation would not be considered in loco parentis to the child.” In light of that statement, I think it would be safe to say that someone caring for a child while the child’s parents are traveling abroad, or while the parents are in rehab for a short period, probably would not be considered to be in loco parentis absent some further evidence of caregiving responsibility.

Unfortunately neither the DOL nor the courts have drawn any sharp line as to how long a caregiving relationship must last before an employee can be considered in loco parentis for a child. A child visiting for several months is a close case and may depend on the duration of the visit, the relationship of the child to the employee, the availability of the parents, the age of the child, etc. In the case of an exchange student visiting for an entire academic year, who has limited contact with his or her own parents and for practical purposes becomes the responsibility of the host parents for an extended period of time, I think there is a decent chance that at least the DOL would say that the host parents do stand in loco parentis to the child.

Traci

Thanks for these podcasts Bill. I do have a question on the “in loco Parentis” portion of the FMLA. We have had an employee come to us who wants to take FMLA leave to care for her underage (i.e. high school child) who is going to be having a baby. From what I understood, her child was still living with her and is expected to live with her after the baby is born. Could she be considered an “in loco parentis”?

Very welcome, thanks for listening and for your question. Depending upon the circumstances, the answer could well be yes. First, if the pregnant daughter is under 18, the employee may be entitled to leave as needed to care for her in connection with the pregnancy, under essentially the same circumstances as an employee could take leave to care for a pregnant spouse.

Once the child is born, if the mother will be providing day to day care for the child akin to what a parent might provide, or will provide significant financial support, then she may be acting in loco parentis. If so, the grandchild would arguably be the employee’s “son or daughter” for purposes of the FMLA, and she may be entitled to FMLA leave for the birth, to care for the newborn child, and to care for the child due to a serious health condition.

Kim

Is there a new poster that we must display that references “in loco parentis”? I cannot find an updated FMLA poster that contains this information. I figured that we are required to have this new addition posted in our employee break areas.

Kim, no, the DOL has not issued an updated poster, so you should continue to display the existing form (WHD Publication 1420). The current poster does not address the definition of “parent” or “son or daughter,” so I would not necessarily expect the issue to be discussed even if the DOL does later issue an updated poster.

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.